With the recent announcement by President Biden that the Occupational Safety and Health Administration (OSHA) will be issuing a temporary emergency standard requiring certain private employers to mandate vaccinations or weekly testing, more and more employers are implementing mandatory vaccination policies. The Equal Employment Opportunity Commission (EEOC) has established that employers can mandate vaccination, provided they make reasonable accommodations for individuals with disabilities or sincerely held religious beliefs. While employers may be familiar with the process for handling accommodation requests under the Americans with Disabilities Act (ADA), requests for religious accommodations are generally less common. However, as more employers implement mandatory vaccination policies, religious accommodation may be on the rise. Below is a summary of the factors that employers should consider when faced with a request for religious exemption from a mandatory vaccination policy.
Is the Exemption Request Based on a Sincerely Held Religious Belief?
The key inquiry for a religious exemption is whether the employee’s stated religious belief is “sincerely held.” Whether an employee’s religious belief is “sincerely held” is rarely up for debate. Employers should be careful not to substitute their judgment for whether an employee holds a particular religious belief based on proper reasons. Further, employers should not assume that an employee’s religious belief is insincere simply because it is not in line with the common practices of the employee’s stated religion. Rather, according to EEOC guidance, whether an employee’s religious belief is sincerely held is largely a matter of individual credibility. Factors that can undermine the employee’s credibility include whether:
- the employee has behaved in a manner markedly inconsistent with the professed belief;
- the accommodation sought is a particularly desirable benefit that is sought for secular reasons;
- the timing of the request is particularly suspect; and
- the employer otherwise has reason to believe the request for exemption is for non-religious reasons.1
Based on the above-listed factors, if the employer has an objective basis for questioning whether an employee’s religious belief is sincerely held, employers may request additional information from the employee.1 For example, employers may request a note from the employee’s religious leader or institution, written religious materials describing the religious practice or belief, written statements from the employee discussing the specifics about their religious belief and how they observe it, or all of the above.1 When requesting and reviewing such materials, employers should keep in mind that absent evidence that the employee’s information lacks authenticity or sincerity, or that the belief is secular in nature, it will be difficult for an employer to deem a belief not sincerely held.
Can the Employer Provide the Employee a Reasonable Accommodation Without Undue Hardship?
If an employer determines that an employee’s request for exemption from the vaccine is based on a sincerely held religious belief, much like under the ADA, the employer must engage in an interactive process to determine whether a reasonable accommodation can be provided. Reasonable accommodations in this scenario may include mandatory mask-wearing, requiring the employee to submit regular negative COVID-19 test results, remote work, or unpaid leave. Employers are not required to provide the employee’s requested accommodation and should consider the work environment and organizational needs when considering whether and what type of reasonable accommodation can be provided.
If the employer determines that the requested or available accommodation(s) would constitute an undue hardship, the employer does not have to provide one. An “undue hardship” under Title VII would require more than a de minimis cost. Notably, this is a lower burden than the undue hardship standard under the ADA, which requires the employer to show that the accommodation would cause “significant difficulty or expense.”
De minimis costs to be considered under Title VII’s undue hardship standard include not only direct monetary costs but also the burden on the conduct of the employer’s business. Indeed, courts have found undue hardship where the requested religious accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, or impairs workplace safety. Whether an undue hardship exists will be specific to the employer’s organization and industry in general. For example, mask-wearing alone may not be sufficient for employers in the healthcare industry. Further, requests for remote work may constitute an undue hardship on an employer if there a numerous individuals making the same request, whether for a religious reason or a disability. Accordingly, these accommodation requests should be examined closely on a case-by-case basis.
For questions about religious accommodation requests in response to mandatory vaccination policies, please contact the MMM Employment Team.